Clinical Malpractice Claims

The High Court has been told that a girl with cerebral palsy may not have been inflicted with any brain injury had she been delivered ten minutes earlier.

Seven-year-old Faye Walsh, taking the birth injury compensation action against the Health Service Executive and two consultant obstetricians through her mother Martine, alleges that medical negligence and a breach of agreement in relation to the management and circumstances of her birth occurred at University Hospital Galway on August 15 2011. The defendants deny these claims.

Throughout her pregnancy with Faye, Martine Walsh was a private patient of Dr Una Conway, a consultant obstetrician. Dr Conway and Dr Declan Egan, the second defendant obstetrician, operate their own private medical practices at Brooklawn Practice, Brooklawn House, Galway West Business Park, while also being employed as consultants in the Galway hospital.

Mrs Walsh decided to use a private obstetrician as she had one previous birth by caesarean section and suffered from serious abdominal injuries when she was involved in a car accident in 2008.

The main legal argument, so far, in the case concerns the information that Mrs Walsh was given in relation to the dangers of a natural delivery for her. The defendants allege that the options and dangers associated were outlined and argue that Mrs Walsh wanted, and agreed, to a natural delivery.

The HSE denies the claims that birth was unreasonably delayed and stated that delivery of the baby via vacuum assisted delivery, using a plastic or metal cup attached to the baby’s head, was also completely reasonable.

In her birth injury compensation case Mrs Walsh said that she was aware that Dr Conway was on annual leave in August 2011 and would not be present at the delivery. However, she claims that she had been advised by Dr Conway that Dr Egan would be there and would be up to date with with her medical history.

Dr Conway and Dr Egan do not agree that Mrs Walsh was told Dr Egan would be present for the delivery. They claim that Mrs Walsh was supplied with an information sheet stating her delivery would be supervised by a covering consultant obstetrician on call for the hospital should Dr Conway be unavailable.

Mrs Walsh told the court that neither defendant obstetrician was called to the hospital when, or after, Ms Walsh began labour about 11pm on Sunday August 14 2011. This was despite her requests from this by her, and her husband, for one of them to be called. The court was told that the on call hospital obstetrician was called to the hospital from his home around 4.30am on the morning of August 15 for the delivery.

The obstetric registrar was also called and used a Kiwi cup on the baby’s head and that the delivery was completed by the on-call obstetrician at 4.55am that morning. Faye was delivered in poor health and had to be resuscitated straight away. The child suffers from spastic quadriplegia, is non verbal, a full-time wheelchair user and will need round the clock care for the rest of her life.

A Galway teacher who fell to the ground suffering from a brain hemorrhage four years after being told that nothing had showed up in a brain scan has settled a High Court hospital negligence action for €750,000.

Barrister John O’Mahony, plaintiff Ms Lorraine Duffy’s legal representative, told the High Court she had gone to the Galway hospital in 2008 to have a brain scan as she was experiencing severe headaches and pain around her left eye. Following the scan Ms Duffy was advised that nothing abnormal was to be seen and she was allowed to go home. However in 2012, just four years later, Ms Duffy collapsed when she was out running.

Counsel said that, following Ms Duffy’s collapse, it was found that there was an aneurysm in the right side of the brain which should been evident in the initial brain scan four years earlier. Due to the failure to diagnose correctly in 2008 Ms Duffy now suffers from injuries to the brain.

Ms Duffy (42) of An Creagan, Barna, Co Galway, took the hospital medical negligence action against the Bon Secours Hospital, Renmore Road, Bon Secours Ireland Ltd and Bon Secours Health System Ltd of College Road, Cork which runs the Galway hospital. Along with this she sued for compensation from consultant radiologist Dr Davidson and Alliance Medical Diagnostic Imaging Ltd of Raheen, Co Limerick which was operated the diagnostic imaging at the Galway Hospital when the 2008 scan took place.

The wrong diagnosis of migraine headaches, to be managed with medication, was given to Ms Duffy. However, following her collapse in 2012 the matter was further looked into at a Dublin hospital and Ms Duffy was discovered to have been experiencing aneurysms.

Ms Duffy can now only do her job part time due to the brain injuries she suffered during the aneurysms. Sadly, she will suffer from the consequences for the rest of her life.

An apology by consultant radiologist, Dr Ian Davidson, of Bon Secours Hospital, Galway, was read aloud to the court in which he accepted and apologised for “the failings” during the care he provided that led to the delay in diagnosis of Ms Duffy’s inter cranial aneurysm.

His apology stated: “I would like to offer my sincere sympathy and regret for the upset and harm you have suffered arising from the subarachnoid hemorrhage in May 2012.”

The family of a little girl who died due to a hole in her heart being not being diagnosed has been apologised to by the Health Service Executive (HSE). The HSE must also pay over €40,000 clinical misdiagnosis compensation to the parents of the child.

Aimee Keogh aged two when she died. She had been waiting in an ambulance as she was due to be taken from Limerick Hospital to Our Lady’s Hospital for Children, Crumlin for a cardiac treatment on July 10, 2014.

Aimee had first attended hospital in March 2014 for febrile convulsions caused by tonsillitis. Consultant radiologist Padraig O’Brien said that after viewing Aimee’s X-ray, he was worried with regard to a septal defect – a hole between the chambers of Aimee’s heart.

Regardless of this, Aimee was not brought to see a paediatric cardiologist and more negligence was suffered when a paediatric neurologist and a treating paediatrician did not examine or identify irregularities in the X-ray, the Keogh family claimed in court.

Four months later, Aimee’s major congenital heart defect went undiagnosed until her condition worsened in the days leading up to her death.

Aimee had experienced 17 different seizures before being rushed to hospital on July 9 and was being about to be transferred to Dublin for a paediatric cardio echo procedure that can be performed by a paediatric cardio consultant working at Crumlin Hospital in Dublin.

An enquiry into the little girl’s death was told her compensation case was never examined by a paediatric cardiologist, but paediatric consultant Annemarie Murphy, who was in charge of Aimee’s case, said she thought that the X-ray was normal and a multi-disciplinary team who reviewed over the same X-ray around three weeks later also found it to be normal.

There were no paediatric cardiologists located outside Crumlin when this happened and children needing treatment would have had to wait up to two years to be seen by a specialist.

The Health Service Executive was told by Judge Eugene O’Kellyto to pay hospital misdiagnosis compensation of €40,000 to Aimee’s family.

Shauni Breen, a 20-year-old woman with cerebral palsy, has been awarded a €1.9m birth negligence pay out from the HSE due to the events surrounding her birth.

The High Court was advised that Ms Breen was delivered approximately 40 minutes after her Nicole, her healthy twin sister in Wexford General Hospital. She (Ms Breen) suffers from cerebral palsy, spastic diplegia and must use a wheelchair.

Ms Breen, who now live in Co Cork, took the legal action against the HSE over the circumstances of her December 30, 1997 birth. When the twins were 33 weeks and three days, it was claimed that their mother Marie Foley was admitted to Wexford General Hospital at 5am. Following this Nicole was delivered healthy at 6.10am.

It was alleged that that the management of the subsequent delivery of Shauni, which lasted for 40 minutes, was incompetent. As well as a failure to have an anaesthetist at the delivery a qualified team should also have been ready and prepared, it was argued. Due was due, it was argued, to the failure of those present to see that this was a high-risk labour.

In the Hight Court HSE refuted these claims and countered that manner of Ms Breen’s delivery complied with general and approved practice at the time in 1997. They (the HSE) claimed that the treatment adhered with conventional medical practice for a district hospital maternity unit at the time.

As Ms Breen had an abnormal presentation she should have been delivered by caesarean section within 15 minutes of her sister, her legal representatives argued.

They advised the Hight Court that Ms Breen had to be resuscitated before being moved to another hospital.

Counsel said the young woman was now doing well in her life and the day to day provided by her mother throughout her life had been of an extraordinary level.

Ms Breen is due to come back to court in five years’ time when her future life care needs will be re-assessed. Mr Justice Kevin Cross approved the €1.9m interim settlement.

Calls have been made, by Epilespy Ireland, for a review of 40 cases of birth defects and disabilities that involved the use of the drug Epilim.

Epilim, a drug which the group has urged doctors not to prescribe for new child patients, is currently under review by the European Medicines Agency. Findings of the review are expected to result in new guidelines regarding its use being issue. Epilim is the brand name in Ireland for sodium valproate.

Epilepsy Ireland, and other campaigners, have asked that females being treated with the drug be considered for alternatives medications as a precaution. 1,700 female patients between the ages of 16 and 44, according to official figures released by the Health Service Executive (HSE), were prescribed Epilim during the calendar year 2016.

Issues experienced in Irish births involving the use of the drug include:

Foetal malformation

Tumours

Spina bifida

Cerebral palsy

Autism

Developmental issues

Spontaneous abortion

Epilim is currently being implicated in 40 cases of birth defects and disabilities, reported to the Health Products Regulatory Authority (HPRA). Lobby groups are of the opinion that this figure might actually be closer to 400 in the 43 years that the drug has been prescribed for treatment in Ireland.

Additionally it has been reported that, in France, in excess of 4,000 children have been born with malformations since 1967 when the use of the drug on children in the womb began there. Dr Mahmoud Zureik, the scientific director of France’s ANSM, said that reports have shown the possibility of experiencing significant birth defects was, worldwide, four times higher in children born to a woman treated with Valproate (Epilim) for epilepsy, when cross referencde with females who were not prescribed the drug.

Commenting on the use of Epilim, the HPRA said that it has liaised with neurologists, obstetricians, paediatricians, psychiatrists, GPs, family planning clinics, specialist epilepsy nurses, pharmacists and HSE clinical leads on an ongoing basis. Following the completion of the review by the European Medicines Agency is it expected that the HPRA will meet to review the use of Epilim in Ireland by medical professionals.

The Minister for Health, Fine Gael TD for Wicklow, Simon Harris is also due to meet with mothers of children who are believed to have suffered following being prescribed the drug to treat their epilepsy.

Roger Murray, joint Managing Partner at Callan Tansey solicitors – speaking at a conference on medical negligence with solicitors, medical professionals and patients in attendance in September – said that roughly 1,000 unnecessary deaths are caused every year in Ireland due to medical negligence.

The legal expert went on to add that up to 160,000 hospitals visitors suffer injuries due to human error. Mr Murray was speaking at the Pathways to Progress conference on medical negligence and stressed that there is “no compo culture” to be seen when it comes to Irish medical negligence compensation legal cases, saying that he believes that what we are seeing currently is just “the top of a very murky iceberg”.

From his experience in working on a number of high-profile medical error compensation cases, Mr Murray said that he believes that not all people suffering due to medical negligence report it while the HSE is made aware of 34,170 “clinical incidents” every year. Of these 575 resulted in compensation claims against the HSE, a rate of less than 1.7 per cent.

Mr Murray told those at the conference that the most often experienced cases are involving surgery (36 per cent) medicine (24 per cent), maternity (23 per cent) and gynaecology (7.5 per cent).

He also stressed that while injured parties and families do have empathy for medical workers who make errors what “they cannot abide is systemic and repeated errors”.

The legal expert called for thorough reviews when mistakes are experienced, saying that he had witnessed many inquests where families of those who had died learned that desktop reviews had been completed after a death, and the results were not presented to the appropriate staff members.

A woman in Philadelphia has won her claim for an adverse reaction to medication which caused her to go into cardiac arrest from which she suffered permanent brain damage.

In June 2010, Jacqueline DiTore attended the Outpatient´s Department of the Abington Surgical Centre in Pennsylvania for scheduled surgery on her nose. Prior to starting the surgery, her surgeon – Dr Warren Zager – asked a nurse to prepare an injection for a local anaesthetic and soak some cotton balls in a nasal decongestant (Afrin) so that they were ready if there was excessive bleeding during the procedure.

The nurse poured the nasal decongestant into a cup in order to soak the cotton balls before preparing the injection; but a second nurse mistook the contents of the cup as the anaesthetic, drew the Afrin into a syringe and handed it to the doctor. Unaware that the syringe had been filled with nasal decongestant, Dr Zager injected the Afrin into Jacqueline´s nose, and then left his patient to prepare for the surgery.

An anaesthetist present in the operating room saw that Jacqueline´s heart rate had decreased to 36 beats per minute and – unaware that Jacqueline had been injected with sufficient Afrin to cause a 100-fold narrowing of the blood vessels – administered an anticholinergic which brought Jacqueline´s heart rate up to 80 beats per minute.

Dr Zager returned to the operating room to begin the procedure, but Jacqueline still had feeling in her nose. The doctor asked for another injection of anaesthetic to be prepared, and it was then that the mix-up was realised. Unaware of the effect that the Afrin had on Jacqueline´s heart rate, Dr Zager chose to continue with the surgery and injected more anaesthetic into Jacqueline´s nose.

Following the second injection, Jacqueline´s heart rate suddenly increased to 140 beats per minute and her blood pressure registered 260/150. Dr Zager administered Labetalol (a drug used to lower high blood pressure) and Jacqueline´s blood pressure fell so low so quickly that she went into cardiac arrest. Jacqueline was rushed to nearby Abington Memorial Hospital where she was resuscitated.

Soon after her recovery from the cardiac arrest, it became apparent that Jacqueline´s adverse reaction to medication had caused brain damage which left her with impaired cognitive abilities, short-term memory loss and difficulty with her speech. Doctors told Jacqueline that her brain injuries were likely to deteriorate as she gets older and, after seeking legal advice, she made a compensation claim for an adverse reaction to medication against the Abington Surgical Centre and Dr Zager.

Both defendants denied that they were liable for the adverse reaction that caused Jacqueline to go into cardiac arrest but at the Montgomery County Court in Philadelphia before Judge Thomas M. Del Ricci, a jury delivered a verdict in Jacqueline´s favour and awarded her $5.1 million in settlement of her claim for an adverse reaction to medication. The jury found Dr Zager to be 38.5 percent negligent for the adverse reaction and the Abington Surgical Centre 61.5 percent negligent for the circumstances which caused it.

A settlement of compensation for delayed hospital negligence has been approved at the High Court in the case of Brid Courtney – two years after the brain damaged child was awarded an interim payment.

Brid, who is now nine years old and comes from Ardfert in County Kerry, was born in Tralee General Hospital in February 2003 suffering from brain damage after medical staff at the hospital allegedly did not act on a sudden and dramatic change in the foetal heart rate pattern.

As a consequence of the slowing heart beat, Brid suffered perinatal asphyxia in the womb and because of the oxygen starvation is now confined to a wheelchair from which she has to be lifted bodily. She is also unable to speak and has to rely on her eyes and facial expressions to communicate with her family.

Following a medical negligence claim due to delayed treatment made through her mother – Deidre – the Health Service Executive agreed to settle the claim without admission of liability and, in November 2010, Mr Justice John Quirke approved an interim payment of 2 million Euros and adjourned the case for two years to allow for the introduction of periodic payments.

However, a system for periodic compensation payments for catastrophic injuries has still not been brought in by the government and – two years after the first payment of compensation for delayed hospital action was approved – the case returned before the court for the approval of a final settlement.

At the High Court, Ms Justice Mary Irvine heard evidence from experts that a further 9 million Euros in compensation for delayed hospital negligence would be required to provide adequate care for Brid through the remainder of her expected life and, as both Brid´s mother and the Health Service Executive agreed with the expert´s assessment, Ms Justice Mary Irvine approved the settlement.

An ex-paramedic, who was left severely disabled after doctors removed the wrong part of his brain, has accepted a seven figure settlement of compensation for hospital negligent brain surgery from the NHS Trust responsible for the error.

John Tunney (63) from Sutton Coldfield, West Midlands, underwent the hospital operation in April 2008 after an MRI scan had revealed abnormalities around his pituitary gland. However, instead of removing the tumour, surgeons took away healthy tissue during the procedure which resulted in John´s brain haemorrhaging.

The error left John partly blind and requiring 24 hour care. He later learned that the operation had not even been necessary as doctors did not check the results of a blood test which would have revealed that John was suffering from prolactinoma – a benign and common pituitary tumour which can be treated with tablets.

After taking legal guidance, John – who worked for the West Midlands Ambulance Service as a paramedic for 23 years – made a claim for hospital negligent brain surgery compensation against the University Hospitals Coventry and Warwickshire NHS Trust and, after an investigation, the NHS Trust admitted liability for the dual error.

John´s solicitors entered into talks with University Hospitals Coventry and Warwickshire NHS Trust over how much compensation for hospital negligent brain surgery should be awarded and, although details of the final settlement have not been released, a settlement in excess of one million pounds has been agreed.

The family of a six-year-old girl, who were told their daughter was well enough to return home when suffering from pneumococcal meningitis, are to receive an anticipated seven figure payout in compensation for clinical misdiagnosis of meningitis.

Kate Pierce from Wrexham, North Wales, was just nine months old when she developed the infection and was brought to Wrexham´s Maelor Hospital. A junior doctor diagnosed Kate with viral tonsillitis and told her parents it was permissible to take her home. When asked if they could have a second opinion, Kate´s parents were told that the advice of a senior doctor had been sought when it had not been.

Kate´s parents took Kate but, when her condition deteriorated further, returned to the hospital the following day. Upon their return Kate was correctly diagnosed with pneumococcal meningitis and transferred to Liverpool´s Alder Hey Children´s Hospital. However, Kate had already sustained serious brain damage and now suffers from chronic lung disease, severe epilepsy and is registered both blind and deaf.

The family sought legal advice about claiming compensation for misdiagnosis of meningitis and sued the Betsi Cadwalader University Health Board for medical negligence – claiming that the severity of Kate´s condition could have been avoided if she had been diagnosed correctly. After an examination of the allegations, Betsi Cadwalader University Health Board admitted 75 per cent liability for Kate´s injuries and, at Mold County Court, a judge heard that a compromise situation had been reached.

How much compensation for medical negligence Kate´s family will receive will be decided at a hearing later this year.